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Joint Submission from Wikileaks and the Australian Assange Campaign

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Joint Submission from Wikileaks and the Australian Assange Campaign Parliamentary Joint Committee on Intelligence and Security Inquiry into the impact of the exercise of law enforcement and intelligence powers on the freedom of the press Joint Submission from WikiLeaks and the Australian Assange Campaign Section One Introduction and Summary We welcome the opportunity afforded by the Parliamentary Joint Committee on Intelligence and Security (‘the Committee’) to provide a submission on the critical issues concerning journalistic freedom in our democracy. Australia is one of the world’s most successful democracies, with a strong commitment to core values of freedom of speech, association, and the press. It is a country with a strong reputation in the world as an exemplar of these values, and our success sends important messages both in our immediate neighbourhood and globally. Simply put, the eyes of the world are upon us as we tackle the balance of freedom and national security. Thus, we have the opportunity if we can strike the right balance, to provide a model for other democracies across the globe. It is evident that over the years since 2001 many security laws have been passed- at the federal level over 70 pieces of legislation - and we have an obligation to examine their combined impacts on civil society, including on the media. Often such measures were passed with insufficient robust debate around consequences for the health of our democracy so this Inquiry clearly provides an overdue review. 1 In that context, we would urge the Committee ensure public hearings and the publication of all submissions. The idea of an inquiry on press freedom being held in camera is clearly a contradiction in terms. The transparency of this process will be critical to enhancing public confidence and trust - which is increasingly under duress, at significant cost to our democratic system. Further it is evident that the creation of the Department of Home Affairs has created conflicted lines of authority and pressure, as well as mission creep - indeed mission leap. The intervention of substantive judicial processes, including requiring warrants to be issued by a senior judicial officer following contested hearings which include the media with the capacity to rebut, will be a crucial reform to add critical checks and balances to an otherwise opaque and unaccountable system. Further the Attorney General should report to Parliament each quarter on the broad number of warrants issued, and this basic information should not, in and of itself, impinge on national security. Without substantial reforms, the case of Mr Julian Assange which is outlined in this submission is the future, if not the present reality, facing Australian journalists, editors and publishers. Our key recommendations are: 1. Urgent intervention in relation to the case of Mr Julian Assange. 2. The Australian government substantially strengthen Public Interest Disclosures Act and other legislation protecting whistleblowers, journalists and media organisations that publish material in the public interest; specifically, evidence of war crimes, corruption and human rights violations. 3. National security legislation must amended to decriminalise regular journalistic activity (35P of the ASIO Act, Division 4C of the Telecommunications Interception and Access 2 Act; Criminal Code Act, Part 5.2: Espionage and related offences; Part 5.6: Secrecy of information, section 119.7: Foreign incursions and recruitment; s 80.2C : Advocating terrorism; Crimes Act: s15HK and s15HL: Controlled operations, unauthorised disclosure of information. 4. Applications for, and the circumstances of the execution of warrants must be contestable and independently monitored; Crimes Act s. 3ZZHA: Delayed notification search warrants, unauthorised disclosure of information 5. Classification of documents and the FOI system overhauled 6. A federal bill of rights be enacted by parliament in order to protect freedom of speech in Australia. 7. Hearings and submissions made to this inquiry are public and accessible. We would urge the Committee to continue to bear in mind the key words of Amal Clooney and Boris Johnson: “The indictment against Julian Assange has alarmed journalists and newspapers around the world…because it criminalises common practices in journalism that have long served the public interest” Amal Clooney, UK Special Envoy on Media Freedom1 “Media organisations should feel free to bring important facts into the public domain…There can be no conceivable case in my view for prosecuting newspapers or media organisations for publishing stuff like this, where there plainly isn’t any risk to national security…A prosecution on this basis would amount to an infringement on press freedom and have a chilling effect on public debate.” Conservative Party candidate for Prime Minister of the UK Boris Johnson discussing the Darroch cables 13 July 20192 1 From 29:32 https://www.pscp.tv/w/b_Z2IDFKUkttWXpvR2V2S1B8MXZBR1JXV2JkT2FKbFDFMQSHUM3tsUk PewbmmDU-Ppq1TCH5dgVlAKnx2HFa?t=31m11s 3 Section Two a) The experiences of journalists and media organisations that have, or could become, subject to the powers of law enforcement or intelligence agencies performing their functions, and the impact of the exercise of those powers on journalists' work, including informing the public. And, b) the reasons for which journalists and media organisations have, or could become, subject to those powers in the performance of the functions of law enforcement or intelligence agencies. The experience of WikiLeaks as a publishing organisation and its Australian founder and former Editor-in-Chief, Julian Assange, provides a profound example of the way in which the exercise of law enforcement and intelligence powers negatively impacts freedom of the press. As an award-winning publishing organisation, WikiLeaks provides a means for individuals and organisations to anonymously provide information for publication in the public interest. WikiLeaks has published comprehensive accounts of serious human rights violations and revealed state involvement and/or complicity in war crimes perpetrated by governments across the globe, including Australia. 3 In 2010, WikiLeaks released an extensive cache of documents by Chelsea Manning, a former United States (US) Army intelligence analyst. These disclosures detailed war crimes and human rights abuses committed by the US government and their agents, including, the groundbreaking Collateral murder video, Iraq War Logs, Afghan War Diaries, Cablegate, and the Guantanamo Bay Detainee Manuals, published in 2010 and 2011.4 These releases and the resultant stories published in newspapers, such as the New York Times, The Guardian, and The Sydney Morning Herald, have provided invaluable insights into the inner workings of government, the intelligence community and the military, and is the quintessential example of journalism in the public interest and exemplifies the role of the fourth estate. 2 https://www.theguardian.com/politics/2019/jul/13/darroch-cables-george-osborne-accuses- met-of-flouting-press-freedom 3 https://defend.wikileaks.org/wikileaks/ 4 https://wikileaks.org/+-War-Military-+.html 4 It should be uncontroversial that a robust democracy hinges on an informed, functioning, fearless and effective media, and the freedom of information. In response to the Chelsea Manning disclosures, the US government charged WikiLeaks’ publisher Assange with seventeen counts under the Espionage Act,5 and one charge of conspiracy to commit unauthorised access to a government computer, a violation of the US Computer Fraud and Abuse Act (CFAA), which is classed as a terrorism offence.6 The US currently seeks his extradition from the UK. This prosecution criminalises normal journalistic activity and is strenuously opposed by major media outlets and human rights organisations in part, and among other reasons, because of the extraterritorial effect of the Espionage Act and CFAA charge.7 The persecution of WikiLeaks founder Julian Assange is central to the experience of journalists in Australia for the following reasons. 1. Julian Assange is currently facing 175 years in the United States (life in prison) for allegedly carrying out regular journalistic activity, and these charges are being applied extraterritorially. The charges Mr Assange faces relate to actions undertaken by journalists on a daily basis, including providing ways for sources to protect their identities and procuring information.8 Current legislation in Australia also criminalises journalistic practice, such as receiving information that is regarded as classified.9 The prosecution of Mr Assange lends to the possibility that other Australian journalists and media outlets could be prosecuted extraterritorially under the same US legislation, because of the jurisdictional overreach, as well as here in Australia. This provides a chilling reality for all Australian journalists and a damning indictment of the Australian governments general attitude in relation to media freedom that, in our view, must be remedied. 5 https://file.wikileaks.org/file/Assange_Indictment.pdf 6 Following the US PATRIOT Act, the CFAA charge is classed as a terrorism offence. 7 Including, Amnesty, Human Rights Watch, RSF, MEAA, IFJ. 8 Prosecutors assert Assange “aided, abetted, counseled, induced, procured, and willfully caused [Chelsea] Manning, who had lawful possession of, access to, and control over documents relating to the national defense” to “communicate, deliver, and transmit the documents” to WikiLeaks. https://defend.wikileaks.org/2019/05/23/julian-assange-charged-under-espionage-act-in-
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